1. The accused has been convicted and sentenced on appeal by the Sessions Judge to a fine of one rupee and the few days imprisonment already suffered before the hearing of the appeal on the ground that he had an excess of a mixture of opium for smoking not allowed by the rules in his house at the time of its search.
2. The facts appear to be that at the time of the search there were found 53 1/2 grains of opium, 52 grains of guli, i.e., an admixture of opium and guava leaves for smoking and 1 1/8 tolas of opium and water in a bottle. Under the rules a person is allowed to possess three tolas of ordinary opium and one tola of a smoking mixture. The Judge found that a technical offence has been committed as the so-called liquid opium plus the guli amounts to more than 1 tola and that these two are admixtures for smoking. As a matter of fact he had only 52 grains of guli in a form fit for smoking, and the only point is whether the mixture of opium and water to the extent of 1 1/8 tolas kept in a bottle will amount to admixture of opium. We can find nothing in support of such contention, and in this connection we have been referred to the case of Upendra Nath Biswas v. Emperor 22 Ind. Cas. 425 : 41. C. 694 : 18 C.W.N. 486 : 19 C.L.J. 53 : 15 Cr. L.J. 73, where the Judges remark in reference to denatured spitit: 'We are not prepared to hold that mere dilution of denatured spirit with water is a process for the manufacture of an excisable article.' In the present case we have a dilution of opium in water, and it is admitted that if this is not an admixture, the accused cannot be convicted. We do not think that we can hold that opium diluted in water can be held to be an admixture for the purpose of smoking. It is obvious that much more preparations would have to be made before a mixture mainly consisting of water could be smoked.
3. In this view of the matter we make the Rule absolute and set aside the conviction and sentence. The fine, if paid, will be refunded.